Wednesday, September 12, 2012

China Environmental Experiences #6: Environmental Philosophy and Human Relationships with Nature

       This is the sixth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.  This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world. 

       October 2011 Zoo--Sunset through Ocean fog In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy.  With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series.  At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).

       These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating.  Every culture has elements that are puzzling, even troubling to those outside it.  (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!)  Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject. 

       Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point.  My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history.  My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
      
       But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.  They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions.  This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law. 

       The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with Chengdu 208grandmothers.  So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself.  We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment.  But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices? 
      
       From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons.  We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations. 
      
       We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs.  Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies.  Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate. 

       Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances.  They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness.  But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world. 

Muir Wilderness Heart Lake       This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification.  Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone.  We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964).  Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles. 
      
       To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system.  They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks.  But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation.  After all, there are roads all over the world!  But there is only one Grand Canyon.

  Chinese landscape painting      Most modern Chinese see the human relationship with nature very differently, and from the bottom up.  Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role.  There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true.  But today, in both government policy and popular consciousness, the balance appears reversed.  By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature.  Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state.  The Chinese, perhaps, have been on an opposite trajectory.
      
       Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty.  After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means.  In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales.  In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs.  To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded.  For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean.  But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
      
       Again, part of the reason for this doubtlessly comes from the pressure of managing such an China Sept 2011 465immense population on such a comparatively small chunk of land.  After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States.  The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people.  The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population.  This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space.  Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity. 
      
       Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population.  And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness.  But by and large, most Chinese people don’t.  Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it.  Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy. 

       Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival.  New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel.  Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together.  But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness.  It was just, in some regards, a different kind of peace.

       Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world.  But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic.  They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons.  The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.”  In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural Turpan Karez 2environments.  As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert.  The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.

Dujiangyan-Irrigation-System-9       Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China.  More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China.  Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation.  Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.

       Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness.  You can see it in the stunningly beautiful Chinese gardens Chengdu 430 of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi.  These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art.  Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers.  Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens.  But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.

       In fact, the Chinese preference for heavily mediated nature extends even to their own national parks.  Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon.  I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest Xinjiang - Tianshan Tianchi 046China.  I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit.  They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi. 

       Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake.  But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside.  It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see.  (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.) 
      
       At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps.  That is, except for the crackling speakers—poorly camouflaged as tree Xinjiang - Tianshan Tianchi 070stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience.  And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music.  As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson.  “Bad,” I believe.  Followed by Abba.  (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)

       To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly.  There is no trail around the lake, she insisted, and she’d been giving tours here for five years.  I would later confirm that the Xinjiang - Tianshan Tianchi 071trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it.  It’s just not part of what they want from their encounters with wilderness.  Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."  

       Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape.  But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country.  Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind.  My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest.  We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails.  But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
      
       Learning from that mistake, I later used the Internet to research a spectacular trail alongside a January - New Year and Yunnan 765majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet.  Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it.  I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists January - New Year and Yunnan 764 used it.  They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas.  As long as I live, I will never forget that hike.  But as far as I can tell, most visiting Chinese will never take it.
      
       I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.”  Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate.  The closest Chinese word would be “pa-shan,” which means to climb a mountain.  But in China, most mountains are climbed on paved trails and stone staircases.  In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit.  When I first arrived in Qingdao, I was delighted to discover that the Laoshan Mountain 088small mountain behind my neighborhood didn’t have one.  But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops.  This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.

       As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness.  I long for earthen trails, and not for piped-in music.  Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation.  Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail.  And they often lead to spectacular temples and contemplative pagodas nestled among the hills, Cherry Picking with the Xin Family 181 a classical and undeniably beautiful feature of traditional Chinese culture.  Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it.  For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...

[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]

--Erin Ryan

 

September 12, 2012 in Asia, Current Affairs, Forests/Timber, Governance/Management, International, Land Use, Music, Travel, US | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Monsoon Madness

Monsoon-map

NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.

Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.

Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.

Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.”  In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.

India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.

Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.

- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.

Monsoon1

August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)

Friday, July 20, 2012

Spending Power Bargaining After Obamacare

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future.  After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.

By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid.  Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others.  Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.

These partnerships reflect the complex way that the Constitution structures federal power, through We the People both specific and open-ended delegations of authority.  Specific congressional powers include the authority to coin money, establish post offices, and declare war.  More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks.  Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority.  (Of course, there is some overlap between the two, but that’s another story and a previous blog.) 

The Spending Clause authorizes Congress to spend money for the general welfare.  Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence).  Sometimes, Congress just funds state programs that it likes directly.  But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see.  In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children). 

In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach.  A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law.  Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.

Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal.  If they don’t like the attached strings, they don’t have to take the money.  Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration.  In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations.  No law has ever run afoul of these broad limits, which have not since been revisited—until now.

In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it.  All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms.  Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously.  But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled.  Even though they really wanted out, they claimed, now they were stuck.  The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please. 

SCOTUSIn deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership.  Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal.  We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy.  (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”)  Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to.  No coercion, no constitutional problem. 

But then the decision takes a key turn.  What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs.  Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive.  By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion.  To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion.  Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics).  The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.

Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid.  For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.”  She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”

On these points, Justice Ginsburg is right.  The decision offers no limiting principle for future judges or legislators evaluating coercive offers.  “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that.  Moreover, the rule is utterly unworkable.  No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum).  The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge.  And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir. 

Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership.  It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent.  But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding).  The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes.  (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.) 

It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way.  Federalism and the Tug of War Within Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power.  But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system.  Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse.  Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.

Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem.  To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership.  Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review.  But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.

--Erin Ryan 

--A version of this essay first appeared on OUP Blog, and later on ACS Blog

 

July 20, 2012 in Cases, Constitutional Law, Current Affairs, Governance/Management, Law, Legislation, US | Permalink | Comments (0) | TrackBack (0)

Thursday, July 5, 2012

China Environmental Experiences # 5: Milk, Pesticides, and Product Safety

Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people.  (This is the fifth in my series of reports from the field about the environmental experiences of an environmental law professor in China—for the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, and May’s exploration of water quality issues.)

Made in ChinaWhile preparing for our year in China, we wondered what we should bring with us from home.  Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here!  But after our arrival, we were surprised to discover how mistaken these assumptions were.  It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world.  What’s not true is that they are available for purchase in China.  As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption.  In fact, it’s illegal to sell goods produced for export on the domestic market.  And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.

Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time.  Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it.  Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development.  In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai  and Shenzhen, or the northern city of Qingdao, where we live.  But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.

Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago.  And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone.  Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters.  Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives.  As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.

This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day.  Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own.  And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire. 

Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint.  Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys.  ToysAs the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case.  But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety.  You can’t just pull everything out, just in case.  There will be nothing left.

In China, the most troubling examples relate to food safety.  In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products.  The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure).  Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market. 

I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.)  These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China.  We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.

Formula RecallBaby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families.  But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels.  The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects.  Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s.  But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.

(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country.  And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now.  Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)

China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively.  The United States has been here before as well, and it may just be a necessary part of the process of economic development.  But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development.  The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards.  And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export! 

Because milk is just the tip of this iceberg.  Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics.  This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct.  From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long.  Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it). 

I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S.  It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products.  I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms).  I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class.  He responded that, yes, if he were a Chinese official, he would probably do the same thing.  But as a Chinese consumer, all he really wanted were some quality shoes.

Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much.  My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side.  If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?

Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural.  In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant.  I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases.  But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant.  In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity. 

China Sept 2011 235In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses.  The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires.  Similarly costly are the traffic-related mortalities that are unfortunately common here.  Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance.  (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!)  Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.

Yet this is only part of the story.  Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture.  Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines.  Healthful living is a huge and important part of Chinese culture, and among its most admirable.  Chinese people eat dried fruits and nuts instead of cheese doodles.  They rest regularly and sleep well at night.  Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life. 

I don’t just mean that Chinese people are in better shape because fewer have cars and must walk CUPL-CLAPV & Wang Canfa 084where Americans usually drive, although that’s also true.  Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans.  In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi.  Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen.  After dinner, families take a ritual “digestive” walk around the neighborhood together.  Then begins evening exercise, when people again gather in public areas for a variety of activities.  Children play openly while men play team sports.  Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music.  We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age.  They are frequently used, especially after work, by young Qingdao February 007and old alike.

So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught.  Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates.  Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change.  But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most. 

--Erin Ryan

 

July 5, 2012 in Asia, Current Affairs, Economics, Governance/Management, International, Law, Social Science, Sustainability, Toxic and Hazardous Substances, Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, June 21, 2012

Obamacare and Federalism's Tug of War Within

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the We the Peoplerelationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.

Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?

To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning Flag Mosaicfrom that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.

As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and IJGAlocal government brings useful capacity to the regulatory table.

Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.

But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.

Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.

By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.

The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, Broccoliwould that be okay?)

Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)

This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.

A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.

Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.

The trick, of course, is that while all of these values are independently good things, they are Tug of Warnevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.

Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.

And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.

The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.

In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to Federalism and the Tug of War Withinfacilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.

--Erin Ryan

(An abbreviated version of this essay first appeared on RegBlog, and then on the American Constitution Society, on June 21, 2012.)

June 21, 2012 in Cases, Constitutional Law, Governance/Management, US | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2012

The Good and the Bad in the BP Settlement, and the Main Course Still Ahead

 

Blue crab.001I spent last Friday--the second anniversary of the BP Blowout--in the vast basement of the Orleans Parish Criminal District Court building, shifting in my metal chair, ignoring the talk-show chatter from the flat screens, and keeping an eye on the red digit counter to know when my number was up.

I'd been called for jury duty.

Whether I will eventually be deployed is up to the gods, but until then I have resolved to study (with the help of this building's creaking Wi-Fi system) all 2,000 pages of the proposed multibillion-dollar settlement in the Deepwater Horizon case--the settlement made public last week by BP and thousands of Gulf Coast residents and businesses. (I blogged earlier when the broad outline of this settlement was first announced here.) 

Now some of you may wish to savor the details, poring over the documents page-by-page between sips of Courvoisier. But for the rest, I've got the bottom line [SPOILER ALERT]: The proposed settlement rewards plaintiffs' hard bargaining, puts a crimp in federal and state hopes for a speedy trial, and demonstrates once again that despite the size of this deal, the main course is yet to come, in the form of federal civil fines and possible criminal prosecution. 

Hard Bargaining Rewarded

The documents propose a class-action structure, in which private plaintiffs would be compensated for economic harm and health claims by way of a settlement fund. The fund would replace the one that began as Ken Feinberg's Gulf Coast Claims Facility, but would be administered by the court rather than BP. Payouts under the new fund could begin within weeks, following Judge Barbier’s preliminary approval of the plan. 

Settlement claims are divided into those for economic loss and medical harm.  It is the package for economic loss that offers the most sparkling feature: a Risk Transfer Premium or "RTP." The RTP is a kind of bonus, based on an agreed-upon "multiplier." It's meant to compensate plaintiffs for future uncertainty or for less concrete losses that are hard to monetize.  So if you are the captain of a crabbing boat who can show $20,000 of lost earnings, you will get compensation in that amount plus a premium of $100,000--the $20,000 loss multiplied by the RTP multiplier for crab boat captains, which is 5. The multiplier varies by category. For coastal property owners, the multiplier is 2.5. For star-crossed oystermen, it is 8.75. I was especially pleased to find that subsistence fishers had secured an RTP multiplier (2.25) to compensate for non-monetized cultural losses, in addition to the multiplier for the economic value of the fish. In Louisiana and Mississippi, Vietnamese-American fishers often use self-caught fish as ceremonial gifts or as objects of community barter. Perhaps in exchange for RTPs, plaintiffs agreed to a total cap on seafood claims of $2.3 billion. All other claims are uncapped.

As for medical claims, any claimant who worked or lived on the coast may receive up to $60,700 for some specific ailments (but not many others), with the right to sue for medical harms that are identified in the future. Class members are also guaranteed 21 years of free medical monitoring.

The promise of quick payouts, combined with the RTP, gives plaintiffs compelling reasons to consider it. Surely, plaintiffs' lawyers will like it: BP has agreed not to object when they press the court for $600 million in fees (which would be paid in addition to plaintiffs' award). I suspect even BP is relieved to get this confusion of high-stakes claims out of the way.

Lost Hope for a Speedy Trial?

I envision federal and state lawyers, somewhere in Swampville, gritting their teeth over what appears the smallest of details. As part of the plan, BP has suggested the trial containing the state and federal claims be postponed all the way until November of this year. Ostensibly, that's because final approval of this settlement could not happen before then. But the timing all but ensures that the meatiest part of the trial--as well as last-minute settlement negotiations with the federal government--would occur half-a-year from now, when public concern has dissipated and a presidential election has just taken place, possibly putting a Republican in charge of the Justice Department next year. It will be up to Judge Barbier to decide that schedule, but right now the government lawyers must be steaming.

The Main Course

When that trial does happen, or when the federal and state claims settle, remember that those claims lie at the heart of this dispute. The partial settlement, valued at around $8 billion, is unquestionably one of the largest settlements in American history. But the remaining federal and state civil claims could eclipse that by many times. And it is possible that criminal penalties could add tens of billions of dollars more to BP’s bill. (See my itemizations here.) 

Is their number up? Today, not by a long shot.  But we’ll see.

--Rob Verchick  

April 23, 2012 in Current Affairs, Energy, Governance/Management, Law, North America, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Saturday, April 7, 2012

China Environmental Experiences #3: Breathing Air with Heft

This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the Rocky Mountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.

It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?

As it turned out, I needed no academic encounter to see where the Shintoist-inflected Japanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. Japan - L. Ashi, Temple, Old Stone Road, Mtn Train, Hakone Vents 059I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.

Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there.  [For a good-day/bad day photo comparison, see this follow-up post.]

China Sept 2011 195And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy in Beijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.

But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Times report that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.

As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.

In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmental law program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine. ELPB 2 RMA - Fushan on Good Air Day

But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.

ELPB 2 RMA - Fushan on Bad Air DayIt’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.

After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.

Winter at Ocean University 031 In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.

In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.

China Sept 2011 376 Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)

Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)

Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”

Qingdao February 040 In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)

Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. Qingdao Brewery 070What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.

--Erin Ryan

April 7, 2012 in Air Quality, Asia, Cases, Climate Change, Current Affairs, Energy, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Live Blogging from Silent Spring @ 50

This morning, I will be blogging live from the University of Utah law school's 17th Annual Stegner Center Conference, "Silent Spring at 50: The Legacy of Rachel Carson." As usual, the conference offers a stellar line-up.

If you want more, you can watch the symposium live (or, later, view the archived version).

The morning session is entitled "The Edge of the Sea: Rachel Carson and the Protection of the Marine World" and features the following speakers:

"Heeding the Signs of a Changing Ocean" -- Susan Avery, President and Director, Woods Hole Oceanographic Institution:
  • "Every second breath you take is provided by the ocean."

  • "We have entered a new geologic age -- the anthropocene era."

  • "The Gulf and other coastal waters have long been a dumping ground for human activities."

  • "One thing that I think Rachel would be pleased about is that science [is now] at the stage where you can predict the emergence of harmful algal blooms."

  • NOAA "has begun now issuing seasonal red tide alerts in the Northeast."

  • "I really think it's harder to get into the ocean than to space. We probably know more about the surface of the moon and Mars than we do the ocean."

  • "It's not funded, but we have a national ocean policy."
"Corporate Ocean Responsibility: Business, Sustainable Use and Stewardship of the Marine World" -- Paul Holthus, founding Executive Director, World Ocean Council
  • "If we think about where we are now with the oceans, and what Rachel Carson would think today, I think she we be partly despairing and partly hopeful."

  • "The economic benefit of the ocean is huge, and it is just beginning to be documented."

  • "Everyone has a stake in the oceans."

  • "One of the keys" to ocean management "is the realization that best practices by an individual corporation is not enough . . . . Collaboration is needed . . . . The problem is that there has not been a structural process to" bring ocean industries together.

  • "Thinking to the future . . . , these are the kind of cross-sectoral things that . . . businesses can get involved in and be part of the solution and not just part of the problem:" (1) ocean governance -- Convention on Biological Diversity, (2) marine spatial planning, (3) regional ocean business councils, (4) smart ocean / smart industries.

  • "Marine mammal issues will increasingly affect marine activities, especially shipping."

  • "We need to balance that growing need for resources and food and energy with those areas that already have resources."

  • "Better data means better modeling and better forecasting," which fundamentally helps businesses, "let alone leading to better environmental management."

"Challenges for Ocean Governance in a Climate Change Era" -- Robin Kundis Craig, Attorneys' Title Professor of Law and Associate Dean for Environmental Programs, Florida State University College of Law

  • "I think what we should really be thinking about is how to keep those ecosystems healthy, functioning, and resilient rather than collapsing."

  • "The problem is we have one ocean but many governments."

  • "As much as we'd like to treat the ocean as one place, there are serious problems for doing that under our current legal system."

  • "Marine spatial planning was introduced, internationally at least, before governments were really thinking about climate change. . . . It is not a panacea. . . . It will not really help with climate change mitigation . . . ."

  • "Marine spatial planning can help with climate change adaptation, and it" can become "more climate change adaptable."

  • "Ocean acidification is the technical fix for anyone who wants to [address] climate change" in the oceans.

  • Australia has a climate change adaptation plan for the Great Barrier Reef. In part, it seeks to "fill knowledge gaps," "identify critical ecosystem thresholds," and translate that into management practices.

  • "Australia is also using the Reef as a reason to engage in climate change mitigation."
  • An example of dynamic zoning possibilities is TurtleWatch, which predicts on a daily basis where sea turtles will be so that fishers can avoid them (and thus prevent closure of the fishery).

-Lincoln Davies

March 9, 2012 in Biodiversity, Books, Climate Change, Current Affairs, Economics, Environmental Assessment, Governance/Management, International, Law, North America, Science, Social Science, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

After Partial Settlement, Oil Spill Case on a Slow Boil

Appetizer

The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)

On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.

On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.

Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-­‐space of federal appeals, delaying for years the compensation that many families and small businesses need now.

For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-­‐50 billion range. (Take $6 billion in compensation fund pay-­‐outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?

To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil. 

--Rob Verchick, Loyola University New Orleans College of Law

cross-posted at CPRBlog

 

March 5, 2012 in Cases, Energy, Governance/Management, North America, US, Water Resources | Permalink | TrackBack (0)

Monday, February 20, 2012

New Series: Environmental Adventures in China

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

ELPB 1 QingDaYiLuTo be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

China Sept 2011 385I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

ELPB 1 UsThe Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.ELPB Intro sea

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

--Erin Ryan

February 20, 2012 in Air Quality, Asia, Climate Change, Energy, Food and Drink, Governance/Management, International, Land Use, Law, Sustainability, Toxic and Hazardous Substances, Water Quality, Weblogs | Permalink | Comments (3) | TrackBack (0)

Thursday, December 1, 2011

Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?

When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for the more conservative Justices on the Court, who arguably have to choose between their concerns for private property rights and protection of state sovereignty.

Despite these fascinating underpinnings of the case, some might argue that the core legal issue is interesting only to a water law or property law scholar: What is the proper legal standard to determine “navigability” for purposes of who owns the beds and banks of a particular water body?

The real-world stakes in PPL Montana, however, are potentially extremely important. The dispute involves whether the State of Montana or either private power companies or the federal government own the beds and banks of the Missouri, Clark Fork and Madison Rivers, and therefore whether the State is entitled to compensation for decades of hydroelectric power production by private companies using dams built on state land. More broadly, the Court’s decision could affect ownership and control of hundreds of miles of rivers throughout the country, particularly in the West. And more importantly, with state ownership comes a public trust duty to protect those waters for shared public values in navigation, commerce, fisheries, and environmental protection. (See, e.g., National Audubon Society v. Superior Court (1983).) 

Because of common confusion about the legal import of the word “navigability”, it is also important to clarify what is not at stake in the case. This case will notaffect the longstanding dispute over the federal government’s jurisdiction over some kinds of water bodies under the Clean Water Act (CWA). Thus far, the Supreme Court has decided CWA jurisdiction cases largely on statutory grounds, interpreting the term “waters of the United States” in the statute. (See Rapanos v. United States (2006).) To be sure, the Supreme Court has indicated that the term “navigable” remains relevant to the geographic reach of the CWA, and that this issue may have constitutional dimensions. (See Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (2001).) However, the Supreme Court has established a different—and for most purposes broader—standard of “navigability” for Commerce Clause authority than for title. Commerce clause authority extends to non-navigable tributaries of navigable waters and to waters that are navigable after artificial improvements. (See Kaiser-Aetna v. United States (1979); United States v. Appalachian Elec. Power Co.,  (1940).) The title test is broader than the Commerce Clause test only where a waterway is navigable solely for intrastate commerce; but one can hardly make that claim for the Missouri River and a major tributary (Clark Fork), which are part of the largest interstate river system in the contiguous states, along with a major tributary of the Columbia River system (the Madison River).

No one in the PPL Montana case disputes the core principle of state ownership of the beds and banks of navigable waters. The Supreme Court confirmed that aspect of state sovereignty in the first half of the nineteenth century (Martin v. Waddell’s Lessee (1842)), and then added that newly admitted states as well as the original 13 share those same rights under the equal footing doctrine of the U.S. Constitution. (Pollard’s Lessee v. Hagan (1845).) Later, the Supreme Court clarified that states held those lands in trust for their people, and therefore could not allow use of those lands for exclusive private benefit without safeguarding their public trust purposes and values. (Illinois Central R. Co. v. Illinois (1892).)

Rather, in PPL Montana, the power company petitioners argue that the Montana trial court and the Montana Supreme Court employed the wrong legal standard in determining whether the particular waters at issue in this case were navigable at the time Montana was admitted to the Union, the timeframe the Supreme Court has held relevant for purposes of ownership.

First, PPL argues that the Montana courts improperly applied the navigability test to the “whole river” rather than a segment-specific inquiry. In United States v. Utah (1931), for example, the Supreme Court found state ownership for large portions of the Colorado and Green Rivers in Utah, but held that title remained in the United States (which owns the surrounding lands) through Cataract Canyon, for which there was insufficient evidence of navigability at statehood. In other cases, however, the Supreme Court has held that temporary interruptions in navigability defeat neither navigability nor title so long as those stretches can be portaged such that the river continues to serve as a continuous highway for commerce. (See The Montello (1874).) Cataract Canyon was never portaged as part of a continuous highway for commerce, and anyone (like me) who has hiked that cliff-bound region knows that such an effort was likely impossible, especially when Utah was admitted into the Union. The State of Montana, however, introduced evidence that the rivers at issue in PPL Montana were portaged historically to transport gold, furs, and other goods in interstate commerce. Interstate commerce stopped at Cataract Canyon, but not at the waterfalls along Montana’s Rivers or many similar waterways throughout the nation.

PPL’s plea for a segmented approach to navigability really amounts to an attack on the factual findings of the state court, an issue the Supreme Court did not accept for review and on which the Court should defer in any event. From a policy perspective, however, PPL’s argument invites a piecemeal pattern of ownership that could impede a state’s efforts, under the public trust doctrine or otherwise, to manage rivers and their component resources as ecosystems. This is a matter of great importance to watershed managers and to businesses and members of the public who use and enjoy rivers for recreational or commercial navigation, for fishing, for water supplies, and for other economic and environmental purposes.  

Second, PPL argues that the Montana courts improperly entertained evidence of current-day recreational use to support a finding of navigability at statehood, as well as evidence of other allegedly irrelevant commercial river uses such as log floating. PPL’s argument about current-day usage is ironic, because in the lower courts it argued that the State should not be allowed to rely on historical records of navigability because they are hearsay (no one remains alive who has personal knowledge of navigability when Montana was admitted to the Union in 1889) and inherently unreliable. If a State cannot use historical evidence of navigability at statehood, and it cannot use post-statehood evidence as probative of the legal test of navigability at statehood, states will have no reasonable way of proving ownership for many rivers. Proof will become increasingly difficult to harness as time passes, inviting private landowners to raise more and more challenges to navigability and thereby to strip the states of legitimate claims to title and, more importantly, to eliminate essential public trust protections.

As to the use of log floating to demonstrate navigability, floating logs to market was a major aspect of commerce in heavily forested parts of the country, and was critical to such major development as construction of the transcontinental railroads. The Supreme Court has approved of such evidence in prior cases (see St. Anthony Falls Water Power Co. v. Board of Water Com’rs of City of St. Paul (1897), but more important, who is better suited than the states (through their courts) to determine what kinds of economic activity are sufficient to show that rivers were highways for commerce for purposes of proving navigability for title?

From a rhetorical perspective, the briefs filed by PPL and various amici on its side appeal to the inclinations of a majority of the Supreme Court to protect private property and the stability of title against governmental takings. The State of Montana and amici on its side, on the other hand, emphasize the importance of preserving state sovereignty and the equal rights of states on admission to the Union. A ruling in PPL’s favor, however, could do serious damage both to property rights and to state sovereignty, because it would effectively constitute a private taking of public property and accompanying public trust protections to subsidize private resource development. The Court can best protect both sets of interests by upholding the Montana Supreme Court’s adherence to U.S. Supreme Court precedent in finding state ownership in the beds and banks of the rivers in question.

Guest post written by Robert Adler, Professor of Law, University of Utah, S.J. Quinney College of Law; Wallace Stegner Center. This post was cross-posted on the Center for Progressive Reform blog.

December 1, 2011 in Current Affairs, Governance/Management, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

Call for Articles - Fordham Environmental Law Review

In celebration of the 40th Anniversary of the Clean Water Act, the Fordham Environmental Law Review plans to publish an issue devoted to water.  They have issued a call for papers, with a deadline of December 15, 2011.  The details follow:

CALL FOR ARTICLE PROPOSALS

The Fordham Environmental Law Review will devote its Spring 2012 issue (Vol. 23.2) to articles on Water, in recognition of the 40th anniversary of the Clean Water Act.

The editors of the ELR are looking for articles discussing a range of environmental, natural resource, energy law, and policy topics associated with issues of water and riparian rights.  Articles may address state, national, or international issues. Suggested topics include:

  • Clean Water Act
  • Hydrofracking
  • Waste water treatment and disposal
  • Citizen suits
  • Invasive Species
  • Conflicts between federal and state rights
  • Congressional activism on environmental/ energy/resource issues
  • Environmental enforcement at the federal, state and local level
  • EPA and Surface Mining Act
  • Agency issues
  • Congress v. Agencies
  • Role of science
  • Cross-jurisdictional consistency/standards

ARTICLE PROPOSALS ARE DUE BY December 15, 2011.

Authors will work with an editor from the ELR Board throughout the publication process.  Articles should be between 8,000 and 25,000 words and should be written in standard legal journal style (footnotes conform to The Bluebook: A Uniform System of Citation).  ELR article guidelines can be found on the ELR website at: http://law.fordham.edu/fordham-environmental-law-review/5518.htm.

Contact: Lee Van Put, Senior Notes & Articles Editor, Fordham Environmental Law Review

-Lincoln Davies

 

November 16, 2011 in Climate Change, Current Affairs, Governance/Management, Law, Sustainability, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)

Saturday, November 12, 2011

McAllister on Regulation by Third-Party Verification and Co-Regulation in Mexican Environmental Law

She is too humble to mention this herself, so I will take this opportunity to note that Lesley McAllister was selected as the Stegner Center Young Scholar this year.  As the Young Scholar, Professor McAllister will be visiting the University of Utah's S.J. Quinney College of Law this coming Monday and Tuesday, November 14 and 15.  Here is the blurb:

Lesley McAllister will join the Stegner Center as our seventh annual young scholar. The Young Scholars Program, which is made possible by the generous support of the Cultural Vision Fund, is designed to recognize and establish a relationship with promising scholars early in their academic careers. Recipients are selected based on their accomplishments, the quality of their academic work, and their promise in the field of environmental and natural resources law and policy.

While at the University of Utah, Professor McAllister will give two talks.  The first starts at noon Mountain time on November 14; it is "Regulation by Third-Party Verification."  The second begins at 12:15 Mountain on November 15; it is "Co-Regulation in Mexican Environmental Law."

Both events are open to the public.  If you're in Salt Lake, please join us.  If you'd still like to participate but can't make it to Salt Lake, you can watch online.

-Lincoln Davies

November 12, 2011 in Current Affairs, Governance/Management, International, Law, North America, Sustainability, US | Permalink | TrackBack (0)

Wednesday, November 2, 2011

Position Announcement - Environmental ADR Program Director

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues.  The position is for the director of the program.

Here is the announcement.  Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

-Lincoln Davies

November 2, 2011 in Air Quality, Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, Land Use, Law, Mining, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Sunday, October 23, 2011

In Case You Missed It -- The Week of October 16 to 22

Climate change regulation is dead?  Not in California, which this week adopted the nation's first economy-wide cap-and-trade program.

The Tenth Circuit, in a 120-page decision, upheld a Clinton-era rule protecting 50 million acres of forestland from logging and roads.

The Council for an Energy-Efficient Economy released its first annual rankings of states; Massachusetts was first, with California second.

An advocacy study observed that FCC standards for cell phones "grossly underestimate[] the amount" of radiation that "smaller adults and children retain," as reported by Greenwire.

BP received approval for a plan to explore for oil in the Gulf of Mexico, its first such approval since the Deepwater Horizon disaster.

There is a fascinating article this week in The New Yorker about the aftermath of the Fukushima-Daiichi nuclear accident in Japan.  (hat tip: Joe Tomain)

October 23, 2011 in Asia, Cases, Climate Change, Current Affairs, Energy, Environmental Assessment, Forests/Timber, Governance/Management, Law, Legislation, Science, Sustainability, US | Permalink | TrackBack (0)

Wednesday, September 7, 2011

The Tea Party, the Dunning-Kruger Effect, and Climate Change - Too Sure of Themselves?

As Cara Horowitz posted about earlier on Legal Planet, some recent polling data emerged today regarding politics and global warming, looking at the views of Democrats, Republicans, Independents and the Tea Party.  The report was put together by the Yale Project on Climate Change Communication and the George Mason Center for Climate Change Communication.  The data contained lots of interesting information, but the most interesting tidbit to me was that:

"Tea Party members are much more likely to say that they are 'very well informed' about global warming than the other groups. Likewise, they are also much more likely to say they 'do not need any more information' about global warming to make up their mind."

Certainly being a specialist in an area does not always make one correct, but reading reports and keeping up with the science of climate change is part of what many of us do for a living. For me personally that is a task separate and apart from my politics, as there is plenty on both sides of the political spectrum with which I both agree and do not agree.  So while I have to rely on the understanding and processes of the scientists engaged in the research, due to my woeful scientific incompetence (I am not, after all, a climate scientist), I can still be somewhat sure from my review of the materials that 95% of scientists truly do maintain a consensus position on the human contribution to climate change, ocean acidification, etc.  Yet I have seen the mindset reflected in the poll when discussing the science of climate change, where I can throw paper after paper and report after report at someone and within minutes they are responding that it just cannot be true, that the debate is still open, etc.  Speed readers? I don't think so.

It reminds me of the Dunning-Kruger effect, but before I get into that let me make very clear that what I am discussing is a derivation of the actual effect. The actual effect is seen across all segments of society regardless of political affiliation, and involves less capable people overestimating their abilities while those more capable underestimate their own abilities relative to others.  But I wonder how this combines with political affiliation to cause people to purposefully put themselves in a position of being "less capable." By that I mean is there a bias toward not believing in climate change that is ideological, but that causes those people to exhibit some Dunning-Kruger-esque view that they are "very well informed" about global warming - more-so than folks who actually trust the science - and that they "do not need any more information"? This is certainly not an argument on my part that members of the Tea Party are less "capable" from an intellectual perspective. I have many, many extremely capable acquaintances who sympathize with the concerns of the Tea Party, but who simply aren't interested in digging deeper than Fox News to find the facts about climate change. Rather, it is that Tea Partiers seem to choose to put themselves into a position where their capability to understand and accept the science is compromised by their political views - they don't even want to track down the data and study it closely because if they do it might demonstrate something incongruous with their political viewpoints. Until one reads the reports and makes an effort to understand the science, that person is "unskilled" in the sense that Dunning-Kruger posits, and is prone to overestimate his or her skill in assessing the "truth" of climate change - just as unskilled as I am at performing surgery or engineering the construction of a building. 

John Cook actually posted about Dunning-Kruger over on Skeptical Science last year.  The site is widely regarded as a respectable source that addresses the arguments for and against the human contribution to climate change.  Cook states:

There are many with a cursory understanding who believe they're discovered fundamental flaws in climate science that have somehow been overlooked or ignored by climate scientists. Some take this a step further and believe they're being deceived . . .

Cook provides the following example:

In the discussion on whether CO2 is a pollutant, a graph was included to show CO2 levels over the last 10,000 years. The graph includes ice core data for CO2 levels before 1950. For values after 1950, direct measurements from Mauna Loa, Hawaii were used.

CO2 Levels

A comment was posted querying the data in this graph. Here is the comment in full:

"Whoa, hold on a minute here. CO2 readings from ONE LOCATION prove we have an enormous GLOBAL spike in CO2 levels? You've got to be kidding me. This is science? That would be like me taking hydrological readings at the bottom of Lake Superior and then declaring that the entire surface of the earth must be covered with water based on my readings. 

By the way, isn't Mauna Loa an active shield volcano? (http://en.wikipedia.org/wiki/Mauna_Loa) Hmmmm, you don't suppose that's where all that extra CO2 came from, do you? C'mon, people, wake up. I find it shameful that this obvious manipulation is allowed to pass as "proof". This is certainly NOT an unbiased scientific conclusion."

The commenter is asking whether it's appropriate to take CO2 readings from one location. Particularly when situated near a volcano which are known to emit CO2. Surely a better metric would be a global average of CO2 levels? These are legitimate questions. However, I deleted this comment as our Comments Policy allows no accusations of deception, whether the attack is directed towards skeptics, scientists or myself. This restriction is necessary to keep discussion constructive and restricted to science. Unfortunately, the comment began with a commendable question and ended with a not-so-commendable personal attack.

If the comment had stayed on methods and not strayed into motive, I would have posted the following response. Mauna Loa was used is because its the longest, continuous series of directly measured atmospheric CO2. The reason why it's acceptable to use Mauna Loa as a proxy for global CO2 levels is because CO2 mixes well throughout the atmosphere. Consequently, the trend in Mauna Loa CO2 (1.64 ppm per year) is statistically indistinguishable from the trend in global CO2 levels (1.66 ppm per year). If I used global CO2 in Figure 1 above, the result "hockey stick" shape would be identical.

Unfortunately, this type of presumptive misunderstanding is seen all too often. Someone doesn't understand a certain aspect of climate science which is understandable considering the complexities of our climate. Rather than investigate further, they assume a flaw in the climate science or worse, an act of deception. This response is often more a reflection of the gap in their own understanding than any flaw in the climate science.  

Perhaps most interesting when considering the Dunning-Kruger effect is that cross-cultural comparisons have demonstrated that Americans may be more prone to the effect than other cultures.  If so, perhaps it is not surprising that American acknowledgement of the threat of climate change trails almost the entire rest of the world: "People nearly everywhere, including majorities in developed Asia and Latin America, are more likely to attribute global warming to human activities rather than natural causes. The U.S. is the exception, with nearly half (47%) -- and the largest percentage in the world -- attributing global warming to natural causes. Americans are also among the least likely to link global warming to human causes, setting them apart from the rest of the developed world."

Ultimately, I wonder if the Tea Party suffers from a politics-induced version of the Dunning-Kruger effect, and simply does not want to dig deeper. Actually, maybe they do want to dig deeper, but only so they can continue to bury their head in the sand.

- Blake Hudson

September 7, 2011 in Air Quality, Climate Change, Governance/Management, International, Law, Physical Science, Science, US | Permalink | Comments (5) | TrackBack (0)

Monday, May 23, 2011

Can't See the Forest for the People - Southern Forests Threatened By Increasing Population

The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing Southern Forests them by as much as 23 million acres (or 13%).  The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.

Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S. 

The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned.  Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments.  In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).

Forest Stringency
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose.  The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.

A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope."  Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.

- Blake Hudson

May 23, 2011 in Biodiversity, Climate Change, Forests/Timber, Governance/Management, Land Use, Law | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

The Saga Continues . . .

Twelve years ago to the month, my wife and I stood in a long line at the classic Uptown Theater in northwest Washington, D.C. to see the much-anticipated Star Wars: Episode I The Phantom Menace.  Whatever your view is of that movie, Jar Jar Binks, or the science fiction genre in general, for me The Phantom Menace evoked a very particular response.  Having come to film as a child largely on repeated viewings of the VHS copy of the original Star Wars my father had made for me when it aired on network television -- the commercials almost, but not quite, perfectly cut out by the pause button -- The Phantom Menace left me awestruck by its effects, struggling with its disconnection from the original trilogy, and certain of only one thing: there would be more.

If anything was clear at the end The Phantom Menace, it was that there would be another installment of the Star Wars enterprise.  The story would go on.  The saga would continue.

Those who have been following the story of high-level nuclear waste in the United States must be feeling the same thing this week, as yet another installment of the saga that is Yucca Mountain was revealed.  While Congress is investigating the Nuclear Regulatory Commission's delay in issuing a final decision on the Department of Energy's withdrawal of its permit application for Yucca, this week the Government Accountability Office released a report examining what motivated DOE's decision to withdraw its application in the first place.  The GAO report is critical enough of the DOE that it is accompanied by a 14-page letter from the Department asserting, in part, that "some" of the GAO's "conclusions are based upon misapprehensions of fact."

A few highlights from the GAO report:

  • "DOE’s decision to terminate the Yucca Mountain repository program was made for policy reasons, not technical or safety reasons."

  • "After decades of effort and nearly $15 billion in spending, DOE succeeded in submitting a license application for a nuclear waste repository. However, since then, DOE has dismantled its repository effort at Yucca Mountain and has taken steps that make the shutdown difficult to reverse."

  • "DOE undertook an ambitious set of steps to dismantle the Yucca Mountain repository program. However, concerns have been raised about DOE’s expedited procedures for disposing of property from the program . . .  In addition, DOE did not consistently follow federal policy and guidance for planning or assessing risks of the shutdown. Some of these steps to dismantle the program will likely hinder progress if the license application review process resumes—should NRC or the courts require it."

  • "[There are] two broad lessons for developing a future waste management strategy. First, social and political opposition to a permanent repository, not technical issues, is the key obstacle. Important tools for overcoming such opposition include transparency, economic incentives, and education. Second, it is important that a waste management strategy have consistent policy, funding, and leadership, especially since the process will likely take decades."

Further media reports on the GAO study are available here, here, and here.

-Lincoln Davies

May 12, 2011 in Climate Change, Current Affairs, Energy, Governance/Management, Toxic and Hazardous Substances | Permalink | Comments (2) | TrackBack (0)

Monday, April 18, 2011

Sarah Krakoff on "Planetarian Identity Formation and the Relocalization of Environmental Law"

Sarah Krakoff, Colorado Law School, has posted an intriguing article titled "Planetarian Identity Formation and the Relocalization of Environmental Law" on SSRN.  The article is forthcoming in the Florida Law Review and can be downloaded here. The abstract can be read at the bottom of this post. 

In a time of rapid globalization, Krakoff provides refreshing insights into the resurgence of localism regarding environmental issues, specifically in the context of climate change. Krakoff assesses a model in which society prepares itself to mitigate and adapt to climate change, regardless of whether the state is or is not successful in "prodding" individuals to act.  She also clearly describes what we, and the state, can learn from local initiatives to tackle climate change.

In doing so, she grapples with the realistic concern that despite important local action on climate, communities very well may fall short in their efforts if steps are not taken by other levels of government, especially since climate change is the "mother of all collective action problems." Krakoff further assesses the political and psychological barriers to breaking through to the world citizenry regarding the urgency of the climate change problem.

Despite localism not being a silver bullet solution, Krakoff provides analysis often overlooked by scholars. She provides a unique level of detail regarding just how much local action occurs at levels more local than even municipalities - which is beyond what conventional scholarship often considers meaningful local action.  Krakoff details first-hand interviews with formal local groups aimed at tackling climate change - called "Carbon Rationing Action Groups" - as well as more informal groups called "Neighborhood Climate Action and Sustainability Groups."

Ultimately, Krakoff's article is an engaging critique that manages to weave in the philosophical perspectives of the likes of Aldo Leopold, Wendell Berry, and Elinor Ostrom while at the same time providing an extremely practical guide to the role of localism in climate change mitigation and adaptation. Krakoff's thesis rings true in her statements that "there will be no solution to the world's environmental problems if we fail to focus on the livelihood and well-being of local communities throughout the world" and that "if we overemphasize the state's role at the expense of the role of the local law of climate change, we come away bored, despairing, apathetic, or all three."

"Planetarian Identity Formation and the Relocalization of Environmental Law"

ABSTRACT:

Local food, local work, local energy production – all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are two-fold, and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to reign in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the vicissitudes of a post-climate changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.

- Blake Hudson

 

April 18, 2011 in Climate Change, Governance/Management, US | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Roy Gardner on "Lawyers, Swamps, and Money - U.S. Wetland Law, Policy, and Politics" (New Book)

Wetlands expert Roy GardnerStetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy.  The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.

Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised.  I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.

Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States.  Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.

Gardner book cover

 

PRESS RELEASE     

Lawyers, Swamps, and Money

U.S. Wetland Law, Policy, and Politics

By Royal C. Gardner

Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.  

Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them.  Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

• the geographic scope and activities covered by the Clean Water Act

• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency

• the goal of no net loss of wetlands

• the role of entrepreneurial wetland mitigation banking

• the tension between wetland mitigation bankers and in-lieu fee mitigation programs

• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.

- Blake Hudson

April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)